Exhibit 10.23(b)


 


ASSIGNMENT AND ASSUMPTION

AND FIRST AMENDMENT TO CREDIT AGREEMENT


 


This ASSIGNMENT AND ASSUMPTION AND FIRST AMENDMENT TO
CREDIT AGREEMENT (this “Amendment”)
is entered into effective as of June 30, 2008 (the “Amendment Effective Date”),
among EQUITABLE RESOURCES, INC., a Pennsylvania corporation formed in 1926 (the
“Existing Borrower”), EQUITABLE
RESOURCES, INC., a Pennsylvania corporation formed in 2008 (the “New Borrower”) and BANK OF AMERICA,
N.A., as administrative agent for the Lenders as defined in the Credit
Agreement hereinafter referenced (in such capacity, the “Administrative Agent”).


 


WHEREAS, the Existing Borrower, the Administrative Agent,
Bank of America, N.A. as Swing Line Lender and as a L/C Issuer, JPMorgan Chase
Bank, N.A. as Syndication Agent and as a L/C Issuer, and the Lenders and other
agents named therein are parties to that certain Credit Agreement dated as of
October 27, 2006 (the “Credit Agreement”);
and


 


WHEREAS, the Existing Borrower and the New Borrower have
implemented Restructuring Alternative No. 2 as defined in the Credit
Agreement and as contemplated by Section 10.22
of the Credit Agreement, and the parties are entering into this Amendment
pursuant to Section 10.22(c)(iii) of the
Credit Agreement;


 


NOW,
THEREFORE, in consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto hereby agree as follows:


 


SECTION 1.           Definitions.  Unless otherwise defined in this Amendment,
terms used in this Amendment which are defined in the Credit Agreement shall
have the meanings assigned to such terms in the Credit Agreement.  For purposes of this Amendment, the term “Loan
Documents” shall also include the Issuer Documents.  “Issuer Documents”
means with respect to any Letter of Credit, the Letter of Credit Application,
and any other document, agreement and instrument entered into by the L/C Issuer
and the Borrower (or any Subsidiary) or in favor of the L/C Issuer and relating
to such Letter of Credit.  The
interpretive provisions set forth in Section 1.02
of the Credit Agreement shall apply to this Amendment.


 


SECTION 2.           Assignment and Assumption; Release
of Existing Borrower. Effective as
of the Amendment Effective Date (a)  Existing Borrower hereby assigns to New Borrower, and New Borrower hereby assumes from Existing
Borrower, all of Existing Borrower’s rights and obligations under the Credit Agreement and the other Loan
Documents including, without limitation, all such rights and obligations
arising prior to the Amendment Effective Date; (b) Existing Borrower is
released from all obligations arising under the Credit Agreement and the other
Loan Documents; and (c) Existing Borrower shall no longer have the rights
of the “Borrower” under the Credit Agreement and the other Loan Documents.


 


SECTION 3.           Amendments to Credit Agreement and
other Loan Documents.  Effective as
of the Amendment Effective Date, the Credit Agreement and each other Loan
Document is hereby amended as follows: 
the “Borrower” shall be Equitable Resources, Inc., a Pennsylvania corporation formed in 2008
instead of Equitable Resources, Inc., a Pennsylvania corporation formed in
1926.


 


SECTION 4.           Conditions to Amendment Effective
Date.


 


(a)           This Amendment shall be effective on
the Amendment Effective Date, subject to satisfaction of the following
conditions precedent:


 

















 


(i)            the Administrative
Agent shall have received counterparts of this Amendment, executed by the
Borrower; and


 


(ii)           the conditions
precedent set forth in Sections 10.22(c)(i),
(ii), (iv), (v) and (vi) of the Credit Agreement  shall
have been satisfied.


 


SECTION 5.           Acknowledgment and Ratification.  Each of New Borrower and Existing Borrower
agrees and acknowledges that the execution, delivery, and performance of this
Amendment shall, except as expressly provided herein, in no way release,
diminish, impair, reduce, or otherwise affect the obligations of the “Borrower”
under the Loan Documents, which Loan Documents shall remain in full force and
effect.


 


SECTION 6.           Existing Borrower’s and New Borrower’s Representations
and Warranties.


 


(a)           Existing
Borrower represents and warrants to the Administrative Agent and the Lenders
that as of the date of its execution of this Amendment and before giving effect
to the assignment, assumption and amendments herein contained, (i) the
representations and warranties set forth in the Credit Agreement are true and
correct in all material respects as though made on the date hereof, except to
the extent that any of them speak to a specific earlier date, in which case
they are true and correct as of such earlier date, and except that for purposes
of this Section 6(a) the representations and
warranties contained in subsections (a) and
(b) of Section 5.04
of the Credit Agreement shall be deemed to refer to the most recent statements
furnished pursuant to subsections  (a) and (b),
respectively, of Section 6.01 of the Credit
Agreement and (ii) no Default or Event of Default exists; and


 


                New
Borrower represents and warrants to the Administrative Agent and the Lenders
that after giving effect to the assignment, assumption and amendments herein
contained, (i) the representations and warranties set forth in the Credit
Agreement are true and correct in all material respects as though made on the
date hereof, except to the extent that any of them speak to a specific earlier date,
in which case they are true and correct as of such earlier date, and except
that for purposes of this Section 6(a) the representations and
warranties contained in subsections (a) and
(b) of Section 5.04
of the Credit Agreement shall be deemed to refer to the most recent statements
furnished pursuant to subsections (a) and
(b), respectively, of Section 6.01 of the Credit Agreement and (ii) no
Default or Event of Default exists.


 


(b)           Each of Existing Borrower and New
Borrower represents and warrants to the Administrative Agent and the Lenders
that the execution, delivery and performance by it of this Amendment have been
duly authorized by all necessary corporate action, and do not and will not
contravene the terms of any of its organizational documents or any Law or any
indenture or loan or credit agreement or any other material agreement or
instrument to which it is a party or by which it is bound or to which it or its
properties are subject.


 


(c)           Each of Existing Borrower and New
Borrower represents and warrants to the Administrative Agent and the Lenders
that no authorizations, approvals or consents of, and no filings or
registrations with, any Governmental Authority or any other person are
necessary for the execution, delivery or performance by it of this Amendment or
for the validity or enforceability thereof, except as have been completed or
obtained and are in full force and effect on the date hereof.


 


(d)           New Borrower represents and warrants
to the Administrative Agent and the Lenders that no authorizations, approvals
or consents of, and no filings or registrations with, any Governmental
Authority or any other person are necessary for the borrowing by New Borrower
of the full amount of the Commitments, other than routine filings with the SEC
and/or other Governmental Authorities.


 

















 


(e)           Each of Existing Borrower and New
Borrower represents and warrants to the Administrative Agent and the Lenders
that this Amendment constitutes the legal, valid and binding obligations of
such entity, enforceable against such entity in accordance with its terms,
except as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors’ rights
generally or by equitable principles relating to enforceability, and by
judicial discretion regarding the enforcement of or any applicable laws
affecting remedies (whether considered in a court of law or a proceeding in
equity).


 


(f)            Each of Existing Borrower and New
Borrower represents and warrants to the Administrative Agent and the Lenders
that New Borrower is New Parent Co. as defined in the Credit Agreement.


 


SECTION 7.           Payment
of Attorney Costs.  New Borrower
agrees to pay the reasonable Attorney Costs of the Administrative Agent
incurred in connection with the preparation, execution and delivery of this
Amendment and any other documents executed or delivered in connection herewith.


 


SECTION 8.           Effect of Amendment.


 


(a)             This Amendment (i) except
as expressly provided herein, shall not be deemed to be a consent to the
modification or waiver of any other term or condition of the Credit Agreement
or of any other Loan Document or of any of the instruments or agreements
referred to therein and (ii) shall not prejudice any right or rights which
the Administrative Agent or the Lenders may now have under or in connection
with the Credit Agreement or the other Loan Documents, as amended by this
Amendment.  Except as otherwise expressly
provided by this Amendment, all of the terms, conditions and provisions of the
Credit Agreement and the other Loan Documents shall remain the same.  The Credit Agreement and the other Loan
Documents, as amended hereby, shall continue in full force and effect.


 


(b)             From and after the Amendment Effective Date, (i) each reference in
the Credit Agreement, including the schedules and exhibits thereto, and the
other documents and Loan Documents delivered in connection therewith to the “Credit
Agreement,” “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like
import, shall mean and be a reference to the Credit Agreement or the applicable
document or Loan Document as amended hereby, and (ii) each reference in
the Credit Agreement, including the schedules and exhibits thereto, the Notes,
and the other documents and Loan Documents delivered in connection therewith, to “Equitable Resources, Inc.” (except for
those references in Section 10.22
of the Credit Agreement and those references in certificates, financial
statements, notices and other correspondence dated prior to the Amendment
Effective Date) shall be deemed to be and shall be a reference to “Equitable Resources, Inc., a
Pennsylvania corporation formed in 2008”.


 


SECTION 9.               Miscellaneous.  This Amendment shall for all purposes be
construed in accordance with and governed by the laws of the State of New York
and applicable federal law.  The captions
in this Amendment are for convenience of reference only and shall not define or
limit the provisions hereof.  This
Amendment may be executed in separate counterparts, each of which when so
executed and delivered shall be an original, but all of which together shall
constitute one instrument.  In proving
this Amendment, it shall not be necessary to produce or account for more than
one such counterpart.  This Amendment,
and any documents required or requested to be delivered pursuant to Section 4
hereof, may be delivered by facsimile transmission of the relevant signature pages hereof
and thereof, as applicable.  This
Amendment shall be a “Loan Document” as defined in the Credit Agreement.


 


SECTION 10.             Entire
Agreement.  THE CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS (EACH AS AMENDED BY THIS AMENDMENT) REPRESENT THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE 


 

















 


OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.


 


[SIGNATURES BEGIN ON NEXT PAGE]


 

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their proper and duly authorized officers as of the
date and year first above written.


 


	
   

  	
  EXISTING
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  EQUITABLE
  RESOURCES, INC., a Pennsylvania 

  
	
   

  	
  corporation
  formed in 1926

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  James E. Crockard, III

  
	
   

  	
  Name:

  	
  James
  E. Crockard

  
	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  
	
   

  	
  NEW
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  EQUITABLE
  RESOURCES, INC., a Pennsylvania 

  
	
   

  	
  corporation
  formed in 2008

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Philip P. Conti

  
	
   

  	
  Name:

  	
  Philip
  P. Conti

  
	
   

  	
  Title:

  	
  Senior
  Vice President and Chief Financial

  
	
   

  	
   

  	
  Officer

  
						



 


[Signature Page to Assignment
and Assumption and First Amendment to


Equitable
Resources, Inc. Revolving Credit Agreement]


 

















 


	
   

  	
  BANK
  OF AMERICA, N.A., 

  
	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ronald E. McKaig

  
	
   

  	
   

  	
  Ronald E. McKaig

  
	
   

  	
   

  	
  Senior Vice President

  
				



 


[Signature Page to Assignment
and Assumption and First Amendment to


Equitable Resources, Inc. Revolving Credit Agreement]